PEOPLE v. HAMILTON

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District Court of Appeal, First District, Division 1, California.

PEOPLE v. HAMILTON et al.

Cr. 2491.

Decided: January 19, 1948

Milton Stansky and Kenneth Carlton Zwerin, both of San Francisco, for appellants. Fred N. Howser, Atty. Gen., and Leo T. Englert, of San Francisco, for respondent.

Defendants were charged in an information with three counts of burglary. The first count charged the burglary of Lester's Market in San Carlos, San Mateo County. The second count charged the burglary of the Tower Market, San Mateo, and the third count charged the burglary of the Carlos Food Market, San Carlos. Defendant Hamilton was acquitted of the first two counts and convicted of the third count. Defendant Bundy was acquitted of the second count, but convicted of counts one and three.

Three points are made upon this appeal: (1) insufficiency of the evidence; (2) error in admitting evidence of a misdemeanor conviction; and (3) error in failing to give a cautionary instruction concerning the testimony of the accomplice.

On December 23, 1946, between 10:30 p. m. and midnight, the Carlos Market in San Carlos was broken into and a desk ransacked, although nothing was taken. The connecting of the defendants with this transaction depends mainly upon the testimony of the witness Johnson, and the sufficiency of the evidence depends in a large degree upon whether his testimony, as he is admittedly an accomplice as to this crime, is corroborated. Johnson testified that he had known the defendants slightly; that on December 23 he met Bundy in San Francisco and ‘I asked him about cutting me in on some money.’ Johnson owned a 1946 Buick sedan, and Bundy suggested that Johnson ‘go with them and bring whiskey in my automobile.’ For this Johnson was to get $300. Hamilton joined them later, and all three discussed taking the back seat out of the automobile so it would hold twenty cases of whiskey. Bundy had a light blue Lincoln Zephyr. Hamilton and Johnson got into the Buick and followed Bundy in the Zephyr. When they stopped, Hamilton and Johnson took the back seat out of the Buick. The back seat was also taken out of the Lincoln. Bundy then drove his car out the Bayshore Highway, followed by Hamilton and Johnson in the Buick. Just before reaching the county line between San Francisco and San Mateo counties, a traffic officer stopped Bundy and gave him a ticket for speeding. With Bundy's car in the lead the cars then proceeded to Redwood City. Hamilton told Johnson that the latter was supposed to haul some whiskey and that Bundy knew where it was and also that Hamilton knew where to follow him. In Redwood City, they parked the cars in front of a certain house, and Hamilton and Johnson entered the Bundy car. With Bundy driving, they drove around San Mateo and San Carlos, engaged in what the jury very reasonably could, and evidently did, regard as ‘casing’ markets, including the Carlos Market. As they passed the Lucky Tower Market (the market mentioned in count two), Bundy said that ‘we’ had taken about 40 cases of whiskey from that market, explaining how they were taken. As they went by Lester's Market (count one) Bundy said ‘We got wo grand out of there’ and ‘a nice little safe.’ Hamilton did not comment either time. Back in Redwood City they again stopped at the house where Johnson had left his car. They all went inside and Johnson was introduced to Hamilton's girl friend who lived there. About twenty minutes to eleven they left. Bundy in his car again preceded Hamilton and Johnson in the latter's car. Johnson stopped at a filling station and got gas, Hamilton paying for it. Hamilton directed Johnson how to find Bundy and they drove down to the Carlos Market. Bundy's car was parked there and Bundy was standing at the side of the building. Hamilton directed Johnson to drive around the building. They then parked down the street on the opposite corner from the market, where they could see the back of the market. Bundy got into his car and parked it behind a building to the rear of the market. Johnson and Hamilton stayed in their car and Bundy went into the market. Later he came out of its back door. Hamilton then got out of Johnson's car and went over to Bundy. They spoke for a short period. Bundy went back in the market and Hamilton stayed outside. Bundy then came out of the market to Hamilton and after saying something they both went into the market.

(We will now leave Johnson's testimony and proceed with the evidence as developed through other witnesses.)

About 10:55 p. m. two San Carlos police officers in a patrol car saw a dark Lincoln Zephyr sedan parked approximately where Johnson had testified Bundy's Lincoln Zephyr was parked. The Zephyr had a dent on the left front fender, also on the left side a radio antenna with some unusual object on it. Later one of the officers identified Bundy's car as the Zephyr he saw that night. Bundy's car had a dent on the left front fender, and a radio antenna on the left side with an unusual object on it. They then observed the Buick with Johnson sitting in it. They went over to that car to look into it and found the back seat had been taken out. When they ordered Johnson to leave the car, Johnson threw the car in gear and drove rapidly away. They fired six shots at the car, and reentering their car they took off in pursuit. They chased him through San Carlos and followed him on the Bayshore Highway, almost to San Mateo, when he outdistanced them. They turned back and went to the Carlos Market, found the rear door open, and the glass above the marquee broken, the office door open, a desk and file cabinet open, and evidence that the office had been searched. They then noticed that the blue Lincoln Zephyr was gone.

In the meantime, while escaping the officers following him, Johnson ran into another car, killing its occupant. Johnson was injured and was taken to the hospital, where the next morning he told his story incriminating Bundy and Hamilton. Johnson was charged with manalaughter. No burglary charge was placed against him.

Defendants contend that the testimony of Johnson was unworthy of belief because of his background, bias, prejudice, and interest in the outcome both of this case and the manslaughter charge. He admitted a prior conviction of a felony, ‘pimping.’ However, those matters were for the jury to consider. We cannt say, as matter of law, that this story is not true. As to the burglary of Lester's Market (count one), his story, if believed by the jury, is sufficient, as he was not an accomplice in that crime. Of course, as to the burglary of the Carlos Food Market (count three), he was an accomplice of the defendants, and therefore his story must be corroborated.

Both Bundy and Hamilton denied the sallent parts of Johnson's testimony. Bundy admitted that he was given a traffic citation on the Bayshore Highway that evening and that while this was happening Johnson and another man passed in the Buick, stopped and returned to where Bundy and the officer were. He denied that Hamilton was the other man. Bundy claimed he went to the airport, which is on the Bayshore Highway between San Francisco and San Mateo, to pick up a girl friend arriving on a plane, and then returned to San Francisco where he gave his car to a James William to give to his roommate, A. B. Brown, who had asked to borrow it. He then went to bed. He denied having been in San Mateo or San Carlos at all that night. Hamilton claimed that he drove his girl friend to Oakland about 6:30 or 7 o'clock in the evening and stayed there until about 2 o'clock in the morning and at no time was in San Carlos or San Mateo.

As corroboration there was the following evidence, in addition to the identification by the police officer of Bundy's Zephyr as being present at the scene of the crime: Defense witness Brown testified that he saw Bundy about 7:30 p.m. at the corner of Post and Buchanan Streets in San Francisco, which is about the place Johnson said Bundy, Hamilton and he were and from which they started their night's enterprise. Brown is mistaken about the time and must have seen Bundy earlier in the evening, as the traffic ticket shows Bundy on the Bayshore Highway at 7:40. Bundy admitted that he was on the Bayshore Highway that evening, was given a ticket, and that he saw Johnson there. Witness Frey, a service station operator in Redwood City testified that about 10:30 p.m. two colored men in a Buick bought gas from him; that they were apparently in a hurry. He was ‘reasonably positive’ that Johnson was the driver and Hamilton the man who handed Johnson the money to pay for the gas. They were the only colored men who came into the station that night.

Defense witness Brown testified that he received the car after midnight from a man named James. Apparently this was not the man named Williams that Bundy claimed he had given the car to give to Brown. Brown told the police officer Jackson that Bundy had given him the car around 3 a.m.; that Bundy told him that he (Bundy) was in trouble. Brown's testimony that he received the car after midnight did not refute Johnson's claim that Bundy used it in the Carlos Market burglary, for had Bundy returned to San Francisco immediately, he would have arrived there by midnight or shortly after.

Witness Delaney testified that around 11:20 p.m. he came upon a wreck in which a maroon colored Buick was involved on the Bayshore Highway. While there two colored boys came up and asked him if any one had been killed and what happened to the man in the Buick. Delaney could not identify them, but said they were tall, slender boys, about the same height as the defendants.

Witness Mitvalsky, the wrecker who went to the scene of the accident, testified that about fifteen minutes after it happened two colored boys questioned him as to ‘what became of the colored man that was in the other car.’ (Emphasis added.) He could not identify the defendants, but stated that one of the boys was tall and slender, and the other heavy and tall—‘six footers.’

The testimony of defense witness Etta Rae Moulton, Hamilton's girl friend, was indefinite, inconsistent and evasive. She was called to deny Johnson's claim that Bundy, Hamilton and he were at her house that night. While she denied that they were there on the night of December 23rd, she admitted that Bundy and Hamilton were in her house ‘around Christmas time.’ She could not remember which night. It is obvious that December 23rd is around Christmas time.

The test of the corroboration necessary to be given to the testimony of an accomplice is set forth in People v. Garrison, 80 Cal.App.2d 458, at page 461, 181 P.2d 738, at page 739: ‘Although the decisions with respect to the scope and degree of corroboration required by section 1111, Penal Code, are in conflict and confusion (People v. Collier, 111 Cal.App. 215, 228, 295 P. 898) the decisions of our Supreme Court leave no doubt that to be sufficient the corroborative evidence in itself must be of an inculpatory character and must tend without aid of testimony of accomplices to implicate the defendant in the commission of the crime. [Citing cases.]’ Also as said in People v. Parker, 80 Cal.App.2d 128 at page 133 , 181 P.2d 16 at page 19: ‘It is now too well settled to require extended discussion that all of the elements of the offense need not be shown by corroborating testimony. The testimony of the accomplice is alone sufficient to establish the commission of the crime charged, and all that the law requires in addition to the testimony of the accomplice is some evidence which tends to connect the defendant with the commission of the offense or from which such connection is reasonably inferable.’

Independently of the testimony of Johnson there was sufficient evidence from which the jury could reasonably find that the accomplice's testimony was corroborated. The witness Brown places Bundy at the starting point of the expedition. The traffic violation incident places Bundy and Johnson and another man on the road to San Carlos. Etta Mae Moulton's testimony was that Bundy and Hamilton were at her house around Christmas time. The witness Frey identifies Johnson and Hamilton as the two colored boys who purchased gas from him about 10:30 that night while in a hurry. Officer Edlin identifies Bundy's car as the car parked near the Carlos Market a few minutes later, at the same time he saw Johnson's car parked nearby. A reasonable inference from the testimony of Delaney and Milvalsky is that the defendants were the men who were concerned about what had happened to Johnson in the accident.

While the district attorney was examining Bundy, the following occurred:

‘Q. Where had you been just prior to coming to San Francisco? A. I had been in Los Angeles.

‘Q. What were you doing in Los Angeles? A. I was in jail.

‘Q. Have you ever been convicted of a felony? A. I will let my lawyer answer that for me.

‘Mr. Stansky [for the defense]: I beg your pardon?

‘Mr. Wyckoff [for the People]: I ask the witness be instructed to answer the question.

‘The Court: Answer the question, have you ever been convicted of a felony? A. Well, I don't know what that is.

Mr. Stansky: Q. Have you ever been sent to a State Prison? A. No, sir.

‘Mr. Stansky: Then you haven't been convicted of a felony.

‘Mr. Wyckoff: Have you ever been convicted of a felony, yes or no? A. I don't know the law, I don't know what to say.

‘Mr. Wyckoff: If Your Honor please, I offer into evidence at this time a certified copy of a judgment of conviction issued in the Superior Court of the State of California, in and for the County of Los Angeles and certified by J. F. Moroney by D. M. Forbes, dated the 5th day of March, 1947, and I show that document at this time to counsel.

‘Mr. Stansky: If the court please, I beg leave to object to the introduction of the document into evidence.

‘The Court: It may be admitted. (Whereupon the document in question was received in evidence and marked People's Exhibit 27 by the clerk of the court).

‘Mr. Wyckoff: He said he had served a County Jail sentence.

‘Mr. Stansky: No, he said he was convicted for pimping.

‘Mr. Wyckoff: No, he said he served a County Jail sentence.

‘Mr. Stansky: I didn't hear him say that.

‘Mr. Wyckoff: Q. What felony were you convicted for? A. Burglary.’ The relevant portion of the judgment introduced into evidence reads as follows: ‘Whereas the said Alfred Bundy having been duly found guilty in this Court of the crime of Burglary, a felony, as charged in the information, which the Court found to be Burglary of the second degree. It is Therefore Ordered, Adjudged and Decreed that the said Alfred Bundy be punished by imprisonment in the County Jail of the County of Los Angeles for the term of six months.’ As the defendant only received a county jail sentence, there can be no question but that the offense referred to ‘became and should have been deemed ‘a misdemeanor for all purposes.’ Pen.Code, § 17; Doble v. Superior Court, 197 Cal. 556, at page 557, 241 P. 852.' People v. Lando, 92 Cal.App. 405, 409, 268 P. 439, 441. Nor can there be any question that the admission of this judgment was error. The attorney general concedes this, as he must. Impeachment of a witness by evidence of a prior judgment of conviction is limited to convictions of felony. Sec. 2051, Code Civ.Proc.; People v. McGee, 24 Cal.App. 563, 141 P. 1055; People v. Alfonso, 77 Cal.App. 377, 246 P. 818; People v. Trimble, 18 Cal.App.2d 350, 63 P.2d 1173; People v. Rowland, 19 Cal.App.2d 540, 65 P.2d 1333; People v. Lando, supra.

The error, too, was not a technical one. It was a substantial error. Under our law, the jury had no more right to have before it the fact of conviction of misdemeanor burglary than of conviction of assault and battery. Actually, knowledge by the jury of the latter type, would be far less harmful to a defendant charged with burglary than knowledge of a prior burglary.

Without minimizing the error, it is interesting to note that defendant, in objecting to the introduction of the judgment, did not specify any grounds, merely stating, ‘I beg leave to object to the introduction of the document in evidence.’ Nor did he make any objection to the district attorney's question, ‘What felony were you convicted for?’ On the other hand, this was not a situation of a prosecuting officer, in the heat of a forensic battle, inadvertently causing error. The district attorney had before him the judgment which showed on its face that it was merely a misdemeanor conviction, and yet he deliberately offered it in evidence. This is the kind of conduct which the court held in People v. Lando, supra, 92 Cal.App. at page 409, 268 P. at page 441, to be highly reprehensible. ‘As the record was easily available to the district attorney, it was distinctly bad practice for him to attempt to create a prejudice against the defendant by compelling him to admit such former conviction.’

It is contended in the dissenting opinion that the provision in section 2051 of the Code of Civil Procedure providing that a witness may be impeached by showing that he has been convicted of a felony, is met by showing the verdict of the jury alone. This contention purports to be based principally upon the opinions in People v. Ward, 134 Cal. 301, 66 P. 372, and People v. Williams, 27 Cal.2d 220, 163 P.2d 692. However, it is based upon a misconception of the decisions in those cases. In People v. Ward, the defendant on a prior occasion had been convicted by a jury of a felony (what felony does not appear). He had not been sentenced. It was held that the verdict of guilty constitutes a ‘conviction’ for the purposes of section 2051. In People v. Williams, the defendant, on a prior occasion, had plead guilty to the crime of burglary. The trial court fixed the degree as second degree, and committed the defendant to the Preston School of Industry. On a subsequent trial for a later offense, this record was admitted into evidence for the purpose of impeaching the defendant. In holding it properly admitted, the Supreme Court followed the Ward case, in holding that the verdict constitutes the ‘conviction’ required under section 2051 of the Code of Civil Procedure. It then goes on to point out that burglary in the second degree is punishable by imprisonment in the state prison and is therefore a felony, but that it is also punishable by a county jail sentence, and that its status as a felony ‘can be changed only by ‘a judgment imposing a punishment other than imprisonment in the state prison’' (27 Cal.2d at page 228, 163 P.2d at page 696), quoting section 17 of the Penal Code. It then holds that in a commitment to Preston the court does not impose a punishment, but suspends sentence on the conviction, and hence such a committal is not a ‘judgment imposing a punishment other than imprisonment in the state prison.’ But the court in the Williams case indicates that it recognizes the fact that although the verdict of the jury is the ‘conviction,’ if such verdict is of a crime that can be either a felony or misdemeanor, depending solely upon the punishment chosen by the court, and is actually followed by a county jail sentence, the conviction becomes, then, ‘for all purposes,’ a misdemeanor. (Emphasis added.) For example, the court uses such language as that quoted above from page 228 of 27 Cal.2d, page 696 of 163 P.2d: ‘* * * its status can be changed only by ‘a judgment imposing a punishment other than imprisonment in the state prison.’' It then states 27 Cal.2d at page 229, 163 P.2d at page 696, referring to In re Rogers, 20 Cal.App.2d 397, 400, 66 P.2d 1237: ‘This principle is stated in no uncertain terms in the Rogers case as follows, 20 Cal.App.2d at page 400, 66 P.2d at page 1238: ‘The necessary inference to be drawn from the language of section 17 of the Penal Code that ‘when a crime punishable * * * by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison,’ is that the offense remains a felony except when the discretion is actually exercised and the prisoner is punished only by a fine or imprisonment in a county jail.'' (Italics added by the court.) And then follows: ‘Defendant's plea of guilty to the burglary charge in 1941, under the record, constituted proof of his conviction of a felony (27 Cal.Jur. § 117, p. 142; People v. Dail, 22 Cal.2d 642, 652, 140 P.2d 828; People v. Jacobs, 73 Cal.App. 334, 351, 238 P. 770), but his commitment to the Preston School of Industry—unlike a county jail sentence, the alternative penal term prescribed by statute—was not ‘a judgment imposing a punishment other than imprisonment in the state prison,’ so that under authority of section 17 of the Penal Code it should thereafter be deemed a mere misdemeanor.' (Emphasis added.)

Thus the Williams case holds, in effect, that the verdict is the ‘conviction,’ whose status, if of a felony, can only be changed by a county jail sentence, and when so changed becomes a misdemeanor ‘for all purposes.’

If the verdict of guilty of burglary were final for impeachment purposes, the court need only to have said so, instead of going on at length to distinguish the committal to Preston from a sentence to the county jail. It is significant, too, that section 2051 of the Code of Civil Procedure states ‘except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony.’ (Emphasis added.)

Being error, the question is, was the action of the district attorney prejudicial error? Section 4 1/2 of article VI of the Constitution states that no judgment shall be set aside on the ground of the improper admission of evidence unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. It is not always easy to determine this question. To point out that the evidence is sufficient to support the judgment is not a complete answer. Accused persons are constitutionally entitled to have their guilt or innocence determined according to law, and to have their substantial rights protected. People v. Adams, 76 Cal.App. 178, at page 186, 244 P. 106, at page 110, contains an excellent compilation of cases which have discussed the test to be applied. As there said, ‘The courts have not attempted to frame a definition of ‘miscarriage of justice’ which can be applied to the varying circumstances of the many cases where the constitutional provision is invoked * * *.' Among other quotations is one from People v. Wilson, 23 Cal.App. 513, 524, 138 P. 971, 975, where the court says that the phrase ‘miscarriage of justice’ ‘is equally applicable to cases where the acquittal or the conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied.’ Certainly in our case the essential rights of the defendants were disregarded in the admission of this evidence.

We are in the situation of the court in People v. MacPhee, 26 Cal.App. 218, at page 22l, 146 P. 522, at page 525, as disclosed in its language: ‘After a most careful consideration of the entire cause, including the evidence, but without the presence of the actual witnesses before us, we are unable to determine whether the defendants would or would not have been convicted by the jury had this erroneously admitted testimony been withdrawn from their consideration. This being so, we do not feel that section 4 1/2 of article 6 of the Constitution can be given application to uphold the judgment in the case at bar. [Citing cases.]’

In People v. Baskins, 72 Cal.App.2d 728, 165 P.2d 510, the rule is stated a little differently than it is set forth in People v. MacPhee, supra. At page 733 of 72 Cal.App.2d, at page 512 of 165 P.2d, the court says: ‘Injury or prejudice cannot be presumed from the mere fact of error. To justify a reversal of a judgment of conviction it must affirmatively appear to the satisfaction of the appellate court from an inspection of the entire record, including the evidence, that the accused may well have been substantially injured by the error of which he complains, and unless the appellate court can say, after such examination, that a miscarriage of justice has resulted the judgment must be affirmed.’ This language does not negative the ruling in the MacPhee case, supra. In fact, it is consistent with it. Under section 4 1/2 of article VI of the Constitution, injury or prejudice is never presumed from the mere fact of error, and it must affirmatively appear to the satisfaction of the reviewing court that the accused may well have been prejudiced by the error. But, as said in the MacPhee case, supra, when this court is in a position where it is satisfied that the accused could have been prejudiced by the error, but is unable to determine, from all the circumstances, whether he actually was so prejudiced, it is the duty of this court, in order to assure that the defendant shall have had that fair trial, the right to which is a fundamental part of our law, to send the case back for a trial in which such error will not be committed.

People v. Crowl, 28 Cal.App.2d 299, at page 313, 82 P.2d 507, at page 515, states: ‘In discussing a similar question, in People v. Black, supra [73 Cal.App. 13, 238 P. 374], it was said (page 383):

“Can we say that there has not been a miscarriage of justice in the one particular disclosed by the error of the court in excluding from the jury the evidence upon the question whether the confessions were freely and voluntarily made? Can we say that the jury would have been bound under the evidence to reach the same conclusion upon that point as was arrived at by the judge? Can we say that they possibly would not have arrived at that conclusion, upon a just consideration of the evidence upon the subject which is unfolded to us from the cold record? * * *

“It is the law that, when applying the provisions of section 4 1/2 of article 6 of the Constitution to an entire cause, we must direct a reversal when we are unable to say ‘whether appellant would or would not have been convicted but for the errors of the court.’ People v. Degnen, 70 Cal.App. 567, 234 P. 129. The same rule is susceptible of an application to the special feature of the present cause which is now under consideration. Can we say whether or not the jury would have decided that the confessions were to be considered if its members had been permitted to pass upon the question whether they were freely and voluntarily made? We certainly cannot say that.”

Again the court 28 Cal.App.2d at page 313, 82 P.2d at page 515, quotes from People v. Taber, 13 Cal.App.2d 27, 55 P.2d 1189, referring to section 4 1/2 of article VI of the Constitution: “‘* * * we do not understand that the amendment in question was designed to repeal or abrogate the guaranties accorded persons accused of crime by other parts of the same Constitution or to overthrow all statutory rules of procedure and evidence in criminal cases. When we speak of administering ‘justice’ in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.”'

In People v. Long, 63 Cal.App.2d 679, at page 689, 147 P.2d 659, at page 665, the court said ‘But where grave error has been committed and the reviewing court cannot with a feeling of assurance say that without the error a conviction would have been had, it becomes the duty of the court to reverse the judgment. [Citing cases.]’

While we are unable to determine whether the defendants in the absence of the erroneous matter would have been convicted, we are satisfied ‘from an inspection of the entire record, including the evidence, that the accused may well have been substantially injured by the error’ (People v. Baskins, supra, 72 Cal.App.2d 728, 733, 165 P.2d 510, 512) and that therefore a miscarriage of justice has resulted.

The evidence of corroboration, while sufficient, was not strong. While the corroborating evidence, standing alone, tended to implicate defendants in the crime, it could not be contended that it was sufficient to convict. The conviction is based primarily on the testimony of the accomplice Johnson, an admitted felon, and one whose testimony, by reason of the manslaughter charge pending and the fact that no burglary charge had been filed against him, was, to say the least, open to suspicion. It was a case of his word against that of the two defendants. We cannot say that the fact that the jury was informed that Bundy had theretofore been convicted of a charge of burglary may not have been the determining factor in its choice of whom to believe. Undoubtedly, in view of the use of the word ‘felony’ in the judgment and the district attorney's evident effort to make the offense appear a felony, the jury believed Bundy had been convicted of a felony. They would have no way of knowing that the sentence imposed reduced the offense to a misdemeanor. There is a universal inclination to feel that a man having once committed an offense is more inclined to offend again. A deliberate attempt to get the jury to believe this is shown, not only by the erroneous offer of the prior misdemeanor conviction, but by the following question asked by the district attorney, without any foundation therefor whatever:

‘Q. In your discussions did you ever hear a rumor or report that along about September 13th, 1941 in Kansas City, Missouri, Mr. Bundy was in trouble for burglary? A. I never knew Bundy before he was in California.

‘Q. I am asking you what you heard about his reputation, did you ever hear a rumor or report he had been in trouble along about that time in Kansas City? A. I have not.’

The court instructed the jury that ‘a witness may also be impeached by proof that he has been convicted of a felony.’ While this instruction applied to the other witnesses who had admitted prior felony convictions, it also could have been understood by the jury as the court telling them that Bundy had been impeached.

The witness Heath, called as a character witness for Bundy, admitted that he had heard a rumor or report that Bundy had been in trouble for burglary in Los Angeles about November 28, 1944, and testified that Bundy had told him ‘that he had been in a little trouble * * * and every time somebody got in some trouble about burglary the finger always pointed toward him, and they would put him in jail.’ Bundy, when asked what he was doing in Los Angeles just prior to coming to San Francisco, stated, ‘I was in jail.’ However, all this evidence is far short of showing a conviction of any crime. We have in mind, too, that Brown, who was an associate and friend of both defendants and a character witness in their behalf, was a felon. While the defendants were not particularly choice in their selection of a friend, this fact does not take away the seriousness of the error in proving improperly that Bundy had once been a burglar. Because of the evidence that Bundy had been in jail and that it had been rumored that he had been in trouble in Los Angeles for burglary, the proof of his conviction of burglary may have taken on more weight in the eyes of the jury. At least, we cannot say that it did not.

The only definite evidence that corroborates Johnson's testimony that Hamilton participated in the burglary is the ‘reasonably positive’ identification of him by the service station attendant. Thus, the evidence of corroboration is not so strong against Hamilton as it is against Bundy. In view of that fact, the improper admission of evidence of Bundy's conviction undoubtedly would influence the jury against Hamilton as well as Bundy. The fact that Hamilton associated with the admitted felon Brown would not reduce appreciably the effect of this evidence. Moreover, if the jury were influenced (and we cannot say they were not) by this evidence, in their decision to accept Johnson's story rather than Bundy's they would thereby determine that Hamilton's story would fall with Bundy's.

Of course, as pointed out heretofore, as Johnson was not an accomplice in the burglary of Lester's Market, his testimony did not require corroboration as to the first count. However, the other evidence alone would not have been sufficient to convict, without Johnson's testimony. Hence, in the conflict between Johnson and Bundy, any error which would cause the jury to look with suspicion on Bundy, would assume considerable proportion. There was very little besides the one statement of Hamilton to tie Bundy into the burglary of Lester's Market other than the fact that certain tools were found later on in Bundy's car, while the car was not in his possession, which experts testified were in their opinion used in the burglary. The market was entered on the night of November 6, 1946, or the early morning of November 7, and a safe taken. The safe was later found broken open at a spot on the road about four miles away. On November 11 officers of the San Francisco police saw Hamilton and a man named Marlowe sitting parked in Bundy's Lincoln Zephyr in a service station in San Francisco. On searching the car, a .45 automatic and the following tools were found in it: tire iron, machinist's hammer, lighter machinist's hammer, two pry bars, flash light, tiny cold chisel, wire cutter, and screw driver. Officer Maillard of the San Carlos Police Department testified that the screw driver fitted in an indentation mark on the inside of the door stop of the door at Lester's Market which had been forced open the night of the burglary.

Witness Burd, criminologist with the State Division of Crime Identification and Investigation, testified that certain markings on the safe coincided exactly with test markings which he made with the irregular edge of one of the bars found in Bundy's car; also certain marks on the safe were of the same size and appearance of test marks made with the cold chisel, and in his opinion the marks found on the safe had been made with these tools; also that the screw driver fitted the impression in the wood from the door stop and could have been used to make the indentation.

Both Bundy and Hamilton denied knowing that the tools were in the car, and also denied being in San Carlos the night of the burglary. Both defendants were previously tried and acquitted of the charge of possession of burglar's tools. Bundy claimed that he was at a party at the home of a Hubert Walton in Richmond that night. The witness Heath corroborated him. Hamilton claimed that he was in Chicago, and did not arrive in San Francisco until November 10th.

Johnson testified that as they passed Lester's Market on the night of December 23 Bundy said ‘We got two grand out of there’ and ‘mentioned there was a nice little safe.’ It is evident from Johnson's testimony that he intended the jury to infer that by ‘we’ Bundy meant himself and Hamilton. But as Hamilton was not even in California at the time, the jury acquited Hamilton of this charge. Of course, as to this count, the testimony of Johnson did not have to be corroborated, as he did not participate in the crime and therefore was not an accomplice. However, as in the case of the third count, there is sufficient evidence to sustain the conviction, but we cannot say that the jury was not influenced in its determination by the erroneously admitted evidence. As said in People v. Richardson, 74 Cal.App.2d 528, at page 537, 169 P.2d 44, at page 51, ‘the introduction of evidence merely having a tendency to show that the accused is of a bad character may deprive * * * the defendant of a fair trial.’ Again, at page 544, of 74 Cal.App.2d, at page 55 of 169 P.2d, ‘This court is zealous in guarding the constitutional right of every person charged with crime to have a fair and impartial trial. Although the main question in a criminal case is to determine if there is evidence to support the verdict that the defendant is guilty of the crime charged, in the face of the record in this particular case, it must be held that the defendant did not have a fair and impartial trial because of the presentation to the jury of the records of his criminal career * * *.’

As the case must be tried over again, it is not necessary to discuss at any length defendants' third point, the failure of the court to instruct as required in subdivision 4, section 2061, Code of Civil Procedure, to the effect that the testimony of an accomplice ought to be viewed with distrust. This instruction should be given even though no request for it is made. People v. Koenig, 29 Cal.2d 87, 173 P.2d 1; People v. Dobkin, 74 Cal.App.2d 269, 168 P.2d 729. Undoubtedly the court will give it.

The orders denying the motions for new trials and the judgments appealed from by both defendants are reversed.

I dissent.

I agree with the statement in appellants' opening brief: ‘Appellants freely recognize the rule that if a corpus delicti has been established, in order to justify conviction of the accused, it is necessary only to prove his participation in the crime, and further recognize that an extra judicial admission, coupled with an independently proven corpus delicti, can be sufficient for conviction.’

I agree with the conclusion in the majority opinion that on the first count the evidence was sufficient to convict Bundy, and that the credibility of Johnson as an accomplice witness on the third count was a matter for the jury to determine. I also agree that independently of the testimony of Johnson there was sufficient evidence from which the jury could reasonably find that the accomplice's testimony was corroborated.

Each defendant was acquitted on the second count. Hamilton was acquitted and Bundy convicted on the first count. As Johnson did not appear as an accomplice witness to prove the allegations of the first count, the suggestion by appellants that his testimony was not corroborated on the first count need not be considered.

Appellants contend that the failure to instruct the jury as required by Code of Civil Procedure section 2061, subd. 4, was prejudicial error. The subdivision provides: ‘That the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution.’ The majority opinion does not hold that such failure was prejudicial error, but, upon the assumption that there will be a new trial, suggests that such an instruction will undoubtedly be given on the next trial. As I believe there should be no next trial, it is necessary to consider whether the failure to give the instruction was prejudicial.

The trial court should give instructions in accordance with statutory command ‘on all proper occasions.’ (Code Civ.Proc., sec. 2061.) However, it may be noticed that in the greater number of decisions the neglect to give such instruction has not been determined to be prejudicial. The neglect of the court to adopt the precise language used in sec. 2061 did not prejudice the rights of either Bundy or Hamilton. The court instructed that it was necessary to corroborate the testimony of an accomplice, which by itself is an indication that the testimony of an accomplice ought to be received with some misgiving and suspicion. The court also instructed: ‘The law of this state admonishes you to view with caution the testimony of any witness which purports to relate an oral admission of the defendant's or an oral confession by him.’ Finally, the court instructed that a witness may be impeached by proof that he has been convicted of a felony. On the third count Johnson was an accomplice and had been convicted of a felony. Under the last instruction the jury could not only view Johnson's testimony with distrust but could disbelieve it entirely. The statement in People v. Koenig, 29 Cal.2d 87, 94, 173 P.2d 1, 5, is appropriate here: ‘In view of the record in this case, however, it is improbable that had this instruction been given, the jury would have discounted this testimony to such an extent that it would have returned a different verdict.’

I differ mainly with my associates on (a) the construction placed upon article VI, sec. 4 1/2 of the Constitution of California; (b) whether Penal Code section 17 is controlling over the provisions of Code of Civil Procedure, sec. 2051; and (c) I contend that there is no warrant in law or justification in fact in ordering the reversal of the judgment against Hamilton who was legally and factually not a party against whom the majority view could apply under the provisions of Code of Civil Procedure, sec. 2051 or Penal Code, secs. 17 and 461, subd. 2.

The majority opinion states that ‘Under section 4 1/2 of article VI of the Constitution, injury or prejudice is never presumed from the mere fact of error, and it must affirmatively appear to the satisfaction of the reviewing court that the accused may well have been prejudiced by the error.’ The majority opinion also states: ‘* * * we cannot say that the jury was not influenced in its determination by the erroneously admitted evidence.’ The evidence referred to is the fact that Bundy had been ‘convicted’ of a felony, namely, burglary in the second degree.

The majority opinion correctly declares that whether an error is prejudicial under the rule set forth in article VI, section 4 1/2 of the Constitution the court shall consider whether the error complained of has resulted in a miscarriage of justice. The majority opinion cites several cases, including People v. MacPhee, 26 Cal.App. 218, 146 P. 522, wherein the court was unable to conclude that the evidence was prejudicial and upon that basis declared an inability to uphold the judgment. The majority opinion in this case states: ‘While we are unable to determine whether the defendants in the absence of the erroneous matter would have been convicted, we are satisfied ‘from an inspection of the entire record, including the evidence, that the accused may well have been substantially injured by the error’ * * * and that therefore a miscarriage of justice has resulted.' The quotation within the statement made by the majority in this case is from People v. Baskins, 72 Cal.App.2d 728, 165 P.2d 510. The full quotation is also quoted in the majority opinion. As I read the Baskins case, 72 Cal.App.2d at page 733, 165 P.2d at page 512, the foundation and test of the rule is not that an accused may well have been or could have been injured and that any error may be declared prejudicial but ‘unless the appellate court can say, after such examination, that a miscarriage of justice has resulted the judgment must be affirmed.’ This construction is borne out by the language used in article VI, section 4 1/2: ‘No judgment shall be set aside, or new trial granted, in any case, on the ground of * * * the improper admission or rejection of evidence, * * * or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’

Section 4 1/2 also refers to instructions to the jury. In People v. Valentine, 28 Cal.2d 121, at page 146, 169 P.2d 1, at page 16, the main opinion does not mention section 4 1/2, but in a short and vigorous dissent the following appears: ‘The administration of justice should not be defeated by a too rigid adherence to a close and technical analysis of the instructions to the jury. This practice was overly indulged prior to 1911 when the people of this state took the reviewing courts in hand and prescribed the mandate that no misdirection of the jury should cause a reversal unless the error complained of resulted in a miscarriage of justice.’ It is said in 2 Cal.Jur., sec. 597, pp. 1006–1007: ‘Under this amendment it is not only within the power but it is also the duty of the appellate court to review the conflicting evidence for the purpose of ascertaining whether or not an error has resulted in a miscarriage of justice.’ In People v. Dail, 22 Cal.2d 642, 659, 140 P.2d 828, 837, the court said: ‘In considering the effect of article VI, section 4 1/2 of the Constitution, ‘We are not substituted for the jury. We are not to determine, as an original inquiry, the question of the defendant's guilt or innocence.’ People v. O'Bryan, 165 Cal. 55, 66, 130 P. 1042, 1046; see, also, People v. Roe, 189 Cal. 548, 561, 209 P. 560. As stated in Tupman v. Haberkern, 208 Cal. 256, 263, 280 P. 970, 973, ‘Whether the error found to be present ‘has resulted in a miscarriage of justice’ presents a question of law on the record before the court, and the purpose of the section [4 1/2] was to require the court to declare as a matter of law whether the error has affected the substantial rights of the party complaining against it, and not for the purpose of determining the evidentiary value of the testimony or where the preponderance of the evidence lies.'' In Hobart v. Hobart Estate Co., 26 Cal.2d 412, 447, 159 P.2d 958, 977, there appears the following: ‘In passing upon the sufficiency of the evidence to support the verdict all conflicts must be resolved in favor of the implied findings of the jury, since it is the sole judge of the credibility of the witness and the weight of the evidence; but in determining whether a judgment must be reversed because of errors in instructions, we are required to examine the entire cause including the evidence and decide whether in our opinion the errors have resulted in a miscarriage of justice.’ (Emphasis added) See, also, People v. Simeone, 26 Cal.2d 795, 161 P.2d 369; People v. Bender, 27 Cal.2d 164, 163 P.2d 8. In People v. Braun, 14 Cal.2d 1, 7, 92 P.2d 402, 405, it is said: ‘Whether the misconduct of a prosecuting attorney has prejudiced the substantial rights of a defendant must rest largely upon the facts of each case. An appellate court may only reverse the judgment when it appears from all the facts that there has been a miscarriage of justice, Const., Sec. 4 1/2 art. VI,’ and not when the court is in doubt.

Primarily upon the basis that there has been a miscarriage of justice, the judgments against Hamilton and Bundy are reversed. There are a few authorities holding that a judgment of conviction should not be sustained if a reviewing court is unable to say whether an error is prejudicial. These cases do not conform to the language used in the Constitution (article VI, sec. 4 1/2) and to the views as expressed in the greater number of decisions by the Supreme Court of this state.

However, in the present case there was no miscarriage of justice for the simple reason that there was no prejudicial error. In fact and in law there was no error.

The prosecuting attorney had the right to ask the defendant whether he had been convicted of a felony. The introduction of the certified copy of the judgment showing that punishment for the felony had been adjudged to be confinement in the county jail instead of the state prison could not prejudice defendant Bundy. The difficulty with this case is that there are a few prior decisions that failed to note the difference between ‘punishment’ for burglary in the second degree (Penal Code, secs. 17 and 461, subd. 2) and that a witness may be impeached by evidence that an accused has been previously ‘convicted’ of a felony (Code Civ.Proc., sec. 2051).

A witness may be impeached by the party against whom he is called if it is shown by the examination of the witness that he has been convicted of a felony or by the production of the judgment evidencing such conviction. Code Civ.Proc., sec. 2051. There are other means or methods approved by judicial decision or legislative enactment whereby evidence of other offenses under certain circumstances may be admissible against one on trial for crime. The citation of a decision approving or disapproving one means, as applied to the facts of a particular case, as authority for the use or non-use of the method or means on any entirely different state of facts may have caused some confusion.

In People v. Peete, 28 Cal.2d 306, 169 P.2d 924, the question of the relevancy of evidence tending to prove other crimes was of great importance. The defendant had been convicted of murder in 1921 and sentenced to the state penitentiary. Subsequently she obtained a release from prison. In 1944 she was charged with a second murder alleged to have been committed after her release. In each case it was the theory of the prosecution that defendant had conceived a definite plan or scheme to obtain money. In the first case her aim had been thwarted. However, there appeared a striking resemblance in the conduct of Mrs. Peete in each case. It was held 28 Cal.2d at page 319, 169 P.2d at page 932, that evidence of a similar motive, knowledge, method of operation and ‘good faith’ on defendant's part was admissible.

The previous conviction had been charged as a ‘prior conviction’ the truthfulness of which is a matter for the benefit of the trial court in imposing ‘punishment’ after ‘conviction.’ The entire judgment role was admitted in evidence. In discussing the matter, the Supreme Court as a further reason for the admission of the evidence stated 28 Cal.2d at page 320, 321, 169 P.2d at page 933: ‘The record of the judgment was admissible in any event to impeach defendant's testimony (Code Civ.Proc., § 2051 * * *) * * * although when no judgment has been pronounced, a conviction may be proved by the record of the verdict (People v. Ward, 134 Cal. 301, 307, 66 P. 372), when a judgment has been rendered, the record thereof establishes the previous conviction beyond dispute, and the record of the earlier proceedings is cumulative. See Code Civ.Proc., §§ 1838, 2044; People v. Peak, 66 Cal.App.2d 894, 913, 153 P.2d 464. Defendant was not prejudiced by the introduction of the record of proceedings preceding the judgment in the Denton case, however, for these proceedings added little information to that related in the judgment. * * * Affirmation on appeal as relevant, however, to a determination of the weight to be given on a previous conviction. See People v. Hardwick, 204 Cal. 582, 589, 269 P. 427, 59 A.L.R. 1480. Such a conviction may be shown by examination of the witness to impeach him. Code Civ.Proc., § 2051.’ It must be noted that the ‘whole’ judgment roll, including the affirmation on appeal was admitted. Of course the record of a judgment ‘establishes the previous conviction beyond dispute’ when the ‘conviction’ and the ‘judgment’ are in perfect accord, as in the Peete case, and therefore one might be considered merely cumulative evidence of the other. There is no reference in the Peete case to section 17 of the Penal Code to the effect that the ‘judgment’ or the ‘commitment’ and not the ‘conviction’ is the ground work for impeachment.

Another instance wherein evidence of ‘other offenses' may be referred to when there has not been a conviction therefor is ‘reputation evidence.’ A witness may be impeached by evidence that his reputation for truth, honesty or integrity is bad but not by evidence of a particular wrongful act. Sec. 2051. However, it is not evidence of the conviction or even of the commission of an act that may tend to impeach under this part of the provisions of the section, but it is the repute in which the party is held that may be considered. It is the repute and not the commission of a wrongful act that constitutes ‘reputation.’

In a case wherein the defendant charged with burglary placed his reputation in issue by calling witnesses to testify as to his ‘honesty and integrity as a law abiding citizen,’ it was held proper to refer to the offenses. ‘On cross-examination they were asked by the district attorney whether they had ever heard ‘that the defendant was charged with burglary in the city and county of San Francisco in February, 1899,’ and also whether they had heard ‘that he was convicted of petit larceny on February 20, 1899, before the police court of the city and county of San Francisco.’' People v. Perry, 144 Cal. 748, 750, 78 P. 284. The purpose of such examination is to determine the credibility of the accused. People v. Gordan, 103 Cal. 568, 569, 573, 37 P. 534; People v. Mayes, 113 Cal. 618, 624, 45 P. 860.

In a case wherein a witness has been convicted of a felony and such fact is sought to be proven as a method of weighing the testimony of the witness so ‘convicted’, if the record of the judgment should be produced all that is necessary to ascertain is whether the party whose impeachment is sought has been ‘convicted of a felony.’ Any recitation of the punishment meted out to the party is of no consequence in determining the credibility of a witness. ‘That such verdict does constitute a conviction, within the ordinary as well as the technical meaning of the word, seems to be well settled. Blackstone (book 4, p. 362), after speaking of the verdict of acquittal, says: ‘But if the jury find him guilty, he is then to be convicted of the crime whereof he stands indicated; which conviction may accrue two ways,—either by his confessing the offense and pleading guilty, or being found so by the verdict of his country.’ * * * In U. S. v. Gibert, Fed.Cas.No.15,204, 2 Sumn. 19, 40, Story, J., said: ‘And here, in order to avoid ambiguity, it may be proper to state that conviction does not mean the judgment passed upon the verdict; but, if the jury find him (the party) guilty, he is then said to be convicted of the crime whereof he stands indicted.’ See, also, Bouv. Law Dict., and cases there cited, especially Commonwealth v. Lockwood, 109 Mass. [323] 325, 12 Am.Rep. 699, and Nason v. Staples, 48 Me. [123] 126. The words ‘convict’ and ‘conviction’ are used in the Penal Code in the sense above stated. ‘A general verdict upon a plea of not guilty is either ‘guilty’ or ‘not guilty,’ which imports a conviction or an acquittal of the offense charged in the indictment.' Pen.Code, § 1151. ‘Whenever the crime is distinguished into degrees, the jury, if they convict the defendant, must,’ etc. Pen.Code, § 1157. At common law persons convicted of an infamous crime were incompetent to testify, and this incompetency was required to be shown by the record which included the judgment. * * * Our statute does not in any manner affect the competency of the witness. It does not brand him as ‘infamous,’—a quality determined by the character of the punishment inflicted. It deems him still capable of telling the truth, but permits the fact of conviction to be shown as a side light upon his moral character, thus affecting his credibility.' (People v. Ward, 134 Cal. 301, 307, 308, 66 P. 372, 374. People v. Ward was approved unanimously by the present Supreme Court in People v. Williams, 27 Cal.2d 220, 228, 163 P.2d 692, 696, where it is said: ‘In this state the testimony of a witness may be impeached by proof that he has suffered the prior conviction of a felony. Code Civ. Proc., § 2051. This rule applies to a defendant who testifies in his own behalf in a criminal trial despite the fact that such evidence may tend to prejudice him in the eyes of the jury. People v. La Verne, 212 Cal. 29, 32, 297 P. 561; People v. Romer, 218 Cal. 449, 452, 453, 23 P.2d 749. The nature of the crime of which he was convicted is a proper subject of inquiry in establishing the fact of his conviction. People v. David, 12 Cal. 2d 639, 646, 86 P.2d 811, and cases there cited. That a ‘conviction’ for purposes of impeachment means nothing more than a verdict of guilty is firmly held in People v. Ward, 134 Cal. 301, at page 307, 66 P. 372 at page 374.' (Emphasis added)

It is true that in the Williams case, after approving the doctrine in the Ward case, the court uses certain language primarily based upon a statement found in In re Rogers, 20 Cal.App.2d 397, 400, 66 P.2d 1237, wherein Penal Code section 17 is quoted. Section 17 was not applicable to the facts of People v. Williams. This is recognized by the Supreme Court 27 Cal.2d on page 231, 163 P.2d on page 697, the last page of the Williams decision, as follows: ‘In either case proof of the defendant's unchanged status with regard to his prior conviction of a felony is the governing factor for impeachment purposes. * * * But, as above stated, here defendant's prior felony conviction was unaffected as the result of the order of commitment to the Preston School of Industry, since it did not involve ‘penal punishment.’ People v. De Fehr, 81 Cal.App. 562, 572, 254 P. 588.'

The facts in In re Rogers, supra, do not have the slightest bearing upon the question of impeachment. Code Civ.Proc., sec. 2051. The question presented involved the determination of Rogers' status as an habitual criminal. Penal Code, sec. 644. On page 400, of 20 Cal.App.2d, on pages 1237, 1238, of 66 P.2d, the court, referring to Penal Code section 17 said: ‘By the provisions of that section a felony punishable by either imprisonment in the state prison, or in the county jail, in the discretion of the court, after such punishment ‘other than imprisonment in the state prison,’ shall be deemed to be a mere misdemeanor.' The court in the Rogers case, 20 Cal.App.2d at pages 400, 401, 66 P.2d at page 1238, had in mind that section 17 is applicable in fixing punishment for a subsequent offense: ‘It remains a felony for all purposes except that ‘after a judgment imposing a punishment other than imprisonment in the state prison,’ it shall thereafter be deemed to be a mere disdemeanor. One of the chief reasons for this change in the nominal character of the offense as a result of imposing a jail sentence is that under such circumstances the offense is not considered to be serious enough to entitle the court to resort to it as a prior conviction of a felony for the purpose of increasing the penalty for a subsequent crime.' (Second emphasis added.)

Penal Code section 644 provides that criminals who have been previously twice ‘convicted’ or three times ‘convicted’ and who have ‘served’ separate terms therefor in a state prison as punishment, are habitual criminals and may have ‘judgment’ pronounced of imprisonment for life. Among other purposes Penal Code section 17 is pertinent to sec. 644 as one of its objects is to determine the effectiveness of punishment. Punishment is meted out by judgment and sentence. Under the provisions of section 644 an accused charged with a felony, convicted of a felony but sentenced to fine or imprisonment in the county jail shall be deemed to be in the misdemeanor class ‘for all purposes' after a judgment. This applies of ‘punishment’ but not to ‘credibility.’ However in the matter of punishment the rule does not seem to be without elasticity. In People v. Clapp, 67 Cal.App.2d 197, 153 P.2d 758, a former conviction was set forth after the indictment charged the later offense. At page 200 of 67 Cal.App.2d at page 760 of 153 P.2d, the court said: ‘Appellant contends that at the time of the filing of the information and at the time of the trial he had not been convicted because his judgment of conviction in the former case was on appeal. This contention has been disposed of repeatedly. People v. Ward, 134 Cal. 301, 66 P. 372; Ex parte Brown, 68 Cal. 176, 8 P. 829; People v. Acosta, 115 Cal.App. 103, 1 P.2d 43. The jury, or the court where a jury has been waived, convicts the accused. Penal Code, §§ 689, 1157. Conviction does not mean the judgment based upon the verdict, but it is the verdict itself. People v. Ward, supra, 134 Cal. at page 308, 66 P. 372. It is the ascertainment of guilt by the trial court. People v. Acosta, supra. A person has been convicted even though the judgment should be suspended during appeal, Ex parte Brown, supra, or while the convict is on probation. People v. Christman, 41 Cal.App.2d 158, 106 P.2d 32. In the case of People v. Braun, 14 Cal.2d 1, 92 P.2d 402, it was held that although an adverse judgment in a former case was on appeal a prior conviction might be shown for the purpose of impeachment. A judgment though not final may be proved for any purpose for which it is effectual. People v. Braun, supra; McKannay v. Horton, 151 Cal. 711, 721, 91 P. 598, 13 L.R.A., N.S., 661, 121 Am.St.Rep. 146. The court of other jurisdictions have likewise upheld the practice of alleging the prior conviction even though the judgment based thereon was on appeal at the time of the trial for the second offense. State v. Eisminger, 124 Kan. 464, 260 P. 661; State v. Smith, 128 Ore. 515, 273 P. 323; People v. Morlock, 234 Mich. 683, 209 N.W. 110; Shaffer v. State, 124 Neb. 7, 244 N.W. 921.’

Penal Code section 17 is found in that part of the code generally providing for ‘punishment.’ If it was the intention that one convicted of a felony but sentenced to the county jail could not be impeached under the provisions of Code of Civil Procedure section 2051 it would have been an easy matter to insert such provision in the section.

‘For all purposes' is similar but not quite as broad as the phrase ‘for any purpose whatever.’ In Douglass v. Mayor of Placerville, 18 Cal. 643, 649, the court said: ‘The general phrase, ‘for any purpose whatever,’ was obviously not meant to extend the taxing power to objects foreign to the corporation, but to limit that power, except in a given event, even in respect to corporate objects; the meaning of the phrase being as if it read, ‘for any object whatever within the purview of the corporate powers before given.’ The rule of construction is that general words in a proviso limiting or qualifying a previously granted power are never to be construed as an enlargement of the power.' See, also, 17 Words and Phrases, Perm.Ed., page 228. An exception was made of the term ‘for all purposes' in People v. Williams, supra, where the defendant had been asked whether he had ever been convicted of a felony, and the holding was that a previous commitment to the Preston School of Industry was not a judgment imposing a punishment other than in a state prison. As stated in People v. Williams, supra, the confinement was not in the county jail. The latter language was not necessary to determine the problem in the Williams case. It is primarily upon this language that the majority of this court rest the conclusion that if one is convicted of a felony but punished by confinement in the county jail it is prejudicial error to ask the witness if he has been convicted of a felony as a ground work for impeachment. Sec. 2051, Code Civ.Proc. If the majority view is correct and likewise People v. Williams, a minor convicted of a felony—burglary in the second degree—but sent to a reformatory may be asked upon a trial for a subsequent offense whether he has been convicted of a felony; but to ask the same question of an adult convicted of the same offense in a like degree who has been sentenced to the county jail results in prejudicial error.

However, section 17 has been amended. It now provides that when a defendant is committed to the ‘California Youth Authority’ it makes no difference whether the crime of which the youth has been ‘convicted’ is punishable by imprisonment in the state prison or by fine or by imprisonment in the county jail, the crime may be a felony in the discretion of the court. There is a provision that the crime upon which the youth was ‘convicted’ may be under certain circumstances subsequently declared a misdemeanor—after the youth has been discharged from control Stats.1947, Ch. 826, sec. 1.

I am convinced that there was no legal error on the part of the prosecuting attorney. In 1932 this court declared the difference between a conviction and the pronouncement of judgment. ‘As pointed out in Corpus Juris (volume 16, pp. 1266, 1267), the conviction on the merits relates to a plea or verdict of guilty, either of which ascertains and publishes the fact of guilt; while the pronouncement of the judgment of sentence denotes the action of the court in declaring the consequences of the fact thus ascertained. In other words, the sentence is no part of the conviction, but is based thereon.’ Plum v. Becket, 120 Cal.App. 507, 508, 510, 7 P.2d 1111, 1112. In passing it may be well to once more note that Code of Civil Procedure section 2051 does not provided that a witness is impeached but that a witness may be impeached by proof that the witness has been convicted of a felony.

The majority opinion cites People v. Richardson, 74 Cal.App.2d 528, 169 P.2d 44, 52. It was held in that case that a misdemeanor conviction may not be recognized as a ‘prior conviction within the meaning of Penal Code sec. 644.’ It was also held that the voluminous evidence introduced of the bad character of the accused deprived him of a fair trial. Such evidence consisted of several large pages noting the arrests of the defendant on numerous misdemeanors. It was an historical account of arrests, some without prosecution or even filing a complaint, which was no part of the proof of the prior conviction set forth in the information. In criminal parlance it was a ‘rap sheet.’

The acquittal of Bundy all Hamilton on the second count, and the conviction of Bundy and acquittal of Hamilton on the first count indicate that the jury was not misled by any statement made by the prosecuting officer. Johnson was an ex-convict, but if he testified, as suggested by appellants, against Bundy because he feared the district attorney, it would have been an easy matter for him to relate the admissions of guilt made by Bundy as coming in part from Hamilton.

The reversal of the Bundy judgment by the majority of this court raises quite a problem as to the disposition of co-defendant Hamilton's appeal. The evidence shows that on the only count upon which Hamilton was convicted Bundy was the planner, the manipulator, the director of the three parties involved. It was Bundy who engaged Johnson to aid in the burglary; it was Bundy who rode alone from one county to another, with Hamilton and Johnson following It was Bundy who first arrived at the premises selected for the burglary. It was Bundy who entered first and went outside again to bring Hamilton in. Bundy was the leader in this nefarious enterprise.

During the trial it was in the interest of Bundy and Hamilton that witnesses—one an ex-convict—testify to the good character of defendants. On appeal the points raised are primarily in the interest of Bundy. The reason upon which the majority of this court reverse the judgment is based upon an impeaching question applicable only to Bundy. Attention is also called to the ‘fact that Hamilton associated with the admitted felon Brown. The evidence shows that ‘felon Brown’ was called as a witness on behalf of the defendants Bundy and Hamilton, and testified: ‘I haven't known him [Hamilton] as long as I have Bundy.’

It is a hard task to reverse the judgment in favor of Bundy and affirm the judgment against Hamilton. The majority opinion holds that the alleged improper admission of evidence of Bundy's conviction undoubtedly would influence the jury against Hamilton. There was no special objection presented by Hamilton that he would be prejudiced by the evidence of Bundy's former conviction. The appeal appears to be in the interest of Bundy. The majority opinion makes no reference to the matter except to state its conclusion that ‘undoubtedly’ it influenced the verdict against Hamilton. If this rule is permitted to stand, all co-defendants should be entitled to a reversal of a judgment of conviction if a ruling is made by a reviewing court that the court is unable to determine as to one defendant whether a miscarriage of justice has occurred.

BRAY, Justice.

PETERS P. J., concurs.

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